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Monday, September 28, 2020

Explained: In contempt case against Prashant Bhushan, the ‘Mulgaonkar principles’

By a 2:1 majority, the court held Mulgaonkar, then editor of The Indian Express, not guilty of contempt although the same Bench had initiated the proceedings.

Written by Apurva Vishwanath | New Delhi | Updated: August 24, 2020 9:03:04 am
S Mulgaonkar, S Mulgaonkar contempt case, S Mulgaonkar case, Mulgaonkar principles, Prashant Bhushan contempt case, Prashant Bhushan SC, Express Explained, Indian ExpressS Mulgaonkar v Unknown (1978) is a case that led to a landmark ruling on the subject of contempt.

In the criticism against the Supreme Court’s ruling that held advocate Prashant Bhushan guilty of contempt of court, his counsel has invoked the ‘Mulgaonkar principles’, urging the court to show restraint.

What are the Mulgaonkar principles?

S Mulgaonkar v Unknown (1978) is a case that led to a landmark ruling on the subject of contempt. By a 2:1 majority, the court held Mulgaonkar, then editor of The Indian Express, not guilty of contempt although the same Bench had initiated the proceedings. Justices P Kailasam and Krishna Iyer formed the majority going against then Chief Justice of India M H Beg. Justice Iyer’s counsel of caution in exercising the contempt jurisdiction came to be called the Mulgaonkar principles.

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What was the case about?

An article by A G Noorani in the newspaper about certain judicial decisions during the Emergency period, especially the Habeas Corpus case, had displeased then CJI Beg. The Habeas Corpus case, often referred to as the “Supreme Court’s darkest hour” upheld the detention law, citing that even the right to life can be suspended during an emergency. Justices A N Ray, Beg, Y V Chandrachud and P N Bhagwati formed the majority while Justice H R Khanna was the sole dissenter.

Initially, the SC Registrar wrote to the editor seeking a retraction and an apology, which did not happen.

“Instead of publishing any correction of the mis-statement about the conduct of Judges of this Court, the Editor offered to publish the whole material in his possession, as though there was an issue to be tried between the Editor of the newspaper and this Court and the readers were there to try it and decide it,” Justice Beg wrote in the judgment explaining why contempt proceedings were initiated.

S Mulgaonkar. (Express Archive)

What did Iyer’s ruling say?

Justice Iyer said he agreed to initiating contempt proceedings as CJI Beg was anguished but did not agree with pursuing it. A similar case involving The Times of India was decided just days earlier, in which Justices Kailasam and N Untwalia had disagreed with CJI Beg forming the majority opinion.

Underlining his reasons for not exercising the court’s power to punish for contempt, Justice Iyer said the first rule in the branch of power is a “wise economy of use by the Court of this branch of its jurisdiction”.

“The Court will act with seriousness and severity where justice is jeopardized by a gross and/or unfounded attack on the judges, where the attack is calculated to obstruct or destroy the judicial process. The court is willing to ignore, by a majestic liberalism, trifling and venial offenses-the dogs may bark, the caravan will pass. The court will not be prompted to act as a result of an easy irritability,” he wrote.

He argued in favour of harmonising “the constitutional values of free criticism, the fourth estate included, and the need for a fearless curial process and its presiding functionary, the judge”.

While CJI Beg’s opinion was that Mulgaonkar’s response to the Registrar was as if the case was between the newspaper and people, and not between the newspaper and the court, Justice Iyer said that the people will have the last word.

“Justice is not hubris; power is not petulance and prudence is not pusillanimity, especially when judges are themselves prosecutors and mercy is a mark of strength, not whimper of weakness. Christ and Gandhi shall not be lost on the judges at a critical time when courts are on trial and the people (‘We, the People of India’) pronounce the final verdict on all national institutions,” he wrote.

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